One of the greatest problems faced by
Wisconsin’s children of divorce is the way
family courts often allow one parent to move
children hundreds or even thousands of miles
away from the other parent after divorce. This
can be emotionally damaging to children, who
need the stability of two involved parents after
a divorce. AB 400, which passed the
Assembly last week,
will help safeguard children by preventing some
of these hurtful relocations.
Wisconsin parent seeking to preclude his or her
children from being moved away must prove that
the move is against the children’s best
interests. AB 400 puts the burden of proof where
it belongs—on the parent who seeks to move the
children. Under the bill, the moving parent has
the burden of proving that prohibiting the move
would be harmful to the children’s best
interests. AB 400 creates a rebuttable
presumption that it is in children’s best
interests to remain in the community in which
they have become adjusted.
Today a parent
with whom the children primarily reside can move
his or her children 150 miles away without even
having to notify the nonmoving parent. Even the
modest restrictions on move-aways in current law
are often flouted, as parents move without the
court’s permission and have little reason to
fear its sanction.
AB 400 requires
notification and permission for moves of 20
miles or more if the parents currently live
within 20 miles of each other. In addition, it
requires courts to hold parents who move without
permission in contempt.
The bill is
opposed by the Wisconsin Coalition
Violence, the Wisconsin Council on Children and
Families, the State Bar of Wisconsin, and
others. These groups are correct in their
assertion that custodial parents should
sometimes be allowed to move their children.
This is particularly true in cases of violence,
abuse or dire economic need, or when
noncustodial parents show little interest in
their children or do not avail
themselves of their
such cases AB 400’s presumption against moves
can be easily overcome. What the bill will
do is empower Wisconsin courts to
restrain frivolous, selfish, vindictive, or bad
faith moves which needlessly separate children
from one of their parents.
the bill claim that it unfairly restricts
parents with primary placement of children
(usually mothers) from moving, while not
restricting parents without primary placement
(usually fathers). In reality, all parents
involved are free to move wherever they want--it
is the children who may not be moved if a court
determines that it is against their best
argued that restrictions on move-aways keep
custodial parents "held hostage" in their
neighborhoods, and that they should be able to
“move on with their lives.”
both parents retain responsibilities to their
children after divorce--responsibilities which
are at times inconvenient or limiting. Would we
argue that noncustodial parents' responsibility
to pay child support holds them "hostage?" Do we
condone the behavior of divorced parents who
decide to drop out of their children's lives or
stop paying child support because they’ve
decided to “move on with their lives?
Opponents of AB
400 assert that children’s happiness is
inextricably linked to the happiness of the
custodial parent—an embodiment of the old saying
“if momma’s not happy, ain’t nobody happy.” Yet
when Middleton, Wisconsin psychologist Dr.
Kenneth Waldron reviewed over 70 studies and
literature summaries for the American Academy of
Matrimonial Lawyers in 2003, he found little
evidence to support this. He instead concluded
that the bulk of the research findings do not
see relocations as a positive for children.
AB 400 now
resides in the Senate Committee on Health,
Children, Families, Aging, and Long Term Care.
It passed the majority Republican Assembly along
partisan lines by a 57-38 vote, and could face a
veto from Democratic Governor Jim Doyle.
divorce move-aways are not a partisan
issue--they are a children’s issue. In divorce
cases it is paramount that the
relationship children share with both parents be
respected and protected. AB 400's restrictions
on move-aways are appropriate and necessary to
accomplish this goal.
This column first appeared in the
Wisconsin State Journal (12/3/05).
Jeffery M. Leving
is one of America's most prominent family law attorneys.
He is the author of the book Fathers' Rights:
Hard-hitting and Fair Advice for Every Father Involved
in a Custody Dispute. His website is
Sacks' columns on men's and fathers' issues have appeared in dozens of America's
largest newspapers. Glenn can be reached via his website at
via email at Glenn@GlennSacks.com.